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Judicial Independence in Rwanda Sam Rugege Supreme Court of Rwanda

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Judicial Independence in Rwanda Sam Rugege Supreme Court of Rwanda Global Business & Development Law Journal Volume 19 Issue 2 Symposium Judicial Independence and Legal Article 6 Infrastructure: Essential Partners for Economic Development 1-1-2007 Judicial Independence in Rwanda Sam Rugege Supreme Court of Rwanda Follow this and additional works at: https://scholarlycommons.pacific.edu/globe Part of the International Law Commons Recommended Citation Sam Rugege, Judicial Independence in Rwanda, 19 Pac. McGeorge Global Bus. & Dev. L.J. 411 (2006). Available at: https://scholarlycommons.pacific.edu/globe/vol19/iss2/6 This Symposium is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in Global Business & Development Law Journal by an authorized editor of Scholarly Commons. For more information, please contact [email protected]. Judicial Independence in Rwanda Sam Rugege* TABLE OF CONTENTS I. INTRO DUCTION ............................................................................................. 4 11 A. Institutional Independence .................................................................... 412 B. PersonalIndependence ......................................................................... 413 II. THE RELATIONSHIP BETWEEN JUDICIAL INDEPENDENCE AND ECONOMIC DEVELOPMENT .................................................................. 414 III. THE CONSTITUTIONAL AND LEGAL FRAMEWORK FOR JUDICIAL INDEPENDENCE IN RWANDA ........................................................................ 416 IV. MEASURES TO PROMOTE INDEPENDENCE OF THE JUDICIARY AND ITS ROLE IN DEVELOPMENT ................................................................. 418 A. The Fight Against Corruption............................................................... 418 B . A Code of Ethics .................................................................................... 420 C. OtherAspects of the Justice System that Have a Bearing on Developm ent ..................................................................................... 420 1. Gacaca Courts ................................................................................ 420 2. Comm unity W ork ............................................................................ 422 D. Reform of Business Laws and Resolution of Commercial D isp utes ................................................................................................. 4 22 V. THE CURRENT SITUATION IN RWANDA ....................................................... 423 VI. CHALLENGES TO THE INDEPENDENCE OF THE JUDICIARY .......................... 424 V II. C O NCLUSION ............................................................................................... 425 I. INTRODUCTION Judicial independence is a universally recognized principle in democratic societies. It is a prerequisite for a society to operate on the basis of the rule of law. It is essential for the purpose of maintaining public confidence in the judiciary. As once stated by the Chief Justice of Canada: Judicial independence is valued because it serves important societal goals.... One of the goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of * Supreme Court of Rwanda. Paper presented at the Judicial Independence and Legal Infrastructure: Essential Partners for Economic Development conference, University of the Pacific, McGeorge School of Law, Sacramento, California, October 28, 2005. 2007 /Judicial Independence in Rwanda the court system. Independence contributes to the perception that justice will be done in individual cases. Another societal goal served by judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principal that the exercise of all public power must find its ultimate source in a legal rule.' Various international instruments further stress the importance of judicial independence, including the Universal Declaration of Human Rights2 and the International Covenant on Civil and Political Rights! In particular, the United Nations Basic Principles on the Independence of the Judiciary states: "ji]ndependence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. 4 What is involved in the concept of judicial independence? One approach to the independence of the judiciary is to divide it in two parts: (a) institutional independence; and (b) personal independence. A. InstitutionalIndependence Institutional independence refers to independence of the judiciary from other branches of government-that is, the legislature and the executive. This aspect is further expressed through the principle of separation of powers. A branch of government should not place pressure on or influence another branch of government to act in certain ways. However, the independence of the judiciary, rather than the executive or the legislative branch, is frequently discussed because the judiciary is more vulnerable to pressure or influence. The judiciary makes decisions that might negatively affect the executive or legislature. For instance, it may declare an act of a government official to be unconstitutional, unlawful, or outside the scope of the official's powers. It may also declare a law passed by the legislature to be unconstitutional and of no force or effect. The judiciary has no means of enforcing its decisions without the assistance of the other branches of government. On the other hand, the executive and the legislature may play a crucial role in the appointment of judges and in determining their remuneration and conditions of service in a way that, if not circumscribed by law, may jeopardize the judiciary's independence in doing its work. The other branches of government may also undermine the institutional independence of the judiciary through budgetary measures and through the 1. Reference re Public Sector Pay Reduction Act [1997] 150 D.L.R. 577, 593 (Can.) 2. See Universal Declaration of Human Rights, G.A. Res. 217 A (III), art. 10, U.N. Doc. A/810 (1948). 3. See International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art 14, Dec. 19, 1999, 999 U.N.T.S. 17. 4. Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, U.N. Doc. A/CONF. 121/22Rev. I at 59 (1985). Global Business & Development Law Journal/ Vol. 19 administration of courts. This is why many constitutions, in addition to providing for the separation of powers, establish the financial and administrative independence of the judiciary. This is intended to enable the courts to prepare and administer their budgets without undue pressure, especially from the executive. This sometimes requires that judges' salaries shall be determined by an independent body that is not aligned with the government and that reports to the head of state or the legislature, which in turn puts the proposals of the independent body into force.5 B. PersonalIndependence Personal independence refers to the impartiality of a judge; that is, the judge's ability to make a decision without fear, favor, or prejudice with regard to the parties irrespective of their position in society-it means the absence of bias. The judge should be able to resist intimidation or influence, whether pressure stems from governmental power, politics, religion, money, friendship, prejudice, or other inducements. Decisions should only be based on the facts and the law. 6 It has been said that personal independence is protected by three things: (1) security of tenure, usually ensured by a constitutional provision that a judge may only be dismissed for good cause such as gross misconduct or gross incompetence; (2) decent remuneration and conditions of service (i.e., financial security); and (3) immunity from civil liability for loss caused by performance of judicial duties.7 However, personal independence is also supported by the existence and enforcement of a code of ethics for judges and other court personnel. In many African and other developing countries, there has not always been respect for the rule of law and independence of the judiciary. Judges have been intimidated into giving rulings favorable to the government, forced to resign their positions, and in the worst cases, they have been killed. For instance, the first Ugandan Chief Justice, Benedicto Kiwanuka, was murdered by the Amin regime for not cooperating with the regime's illegal actions In 2005, the Ugandan government sent armed personnel to surround the High Court. In a statement, Chief Justice Odoki said that the judges considered the siege of the High Court as 5. See PARLIAMENTARY SUPREMACY JUDICIAL INDEPENDENCE, LATIMER HOUSE GUIDELINES FOR THE COMMONWEALTH, I 1 (June 19, 1998), available at http://www.cpahq.org/uploadstore/docs/latmrhse.pdf# search=%22the%201atimer%20house%20guidelines%20for%20the%20commonwealth%20 (stating that "[als a matter of principle, judicial salaries and benefits should be set by an independent body and their value should be maintained"). 6. See Basic Principles on the Independence of the Judiciary, supra note 4, 2. 7. See IAN CURRIE & JOHAN DEWAAL, THE NEW CONSTITUTIONAL & ADMINISTRATIVE LAW 301-305 (Juta & Company Ltd. 2001). 8. See Monica Twesiime-Kirya, The Independence and Accountability of the Judiciary in Uganda: Opportunities and Challenges,
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